Court Inaction Could Return Gay Marriage to Calif.

The U.S. Supreme Court seems reluctant to use the legal battle over California’s same-sex marriage ban to rule that all gay Americans have a constitutional right to wed, but that doesn’t mean gay marriage will not be returning to the state.

The high court’s forthcoming ruling is likely to allow same-sex marriages to resume in California more than four years after gays and lesbians first won the right to wed in the state courts and lost it a few months later at the ballot box, legal experts and lawyers involved in the case said.

How that happens and how long it would take remain open to interpretation. There are a range of possibilities. Some experts say a court decision, expected in June, would allow marriages to resume statewide soon afterward, while others argue a ruling could be limited and only affect the original two plaintiffs and residents of counties where they live.

"I don’t think it’s at all a foregone conclusion that everyone gets to benefit," said Tobias Wolff, a University of Pennsylvania law professor who has spent months puzzling over the various scenarios, adding that it’s going to take a lot more work before there is a final answer.

Each scenario is likely to produce more legal and political wrangling. Depending on how long it lasts, same-sex marriage backers could decide it would be easier to organize to repeal the voter-enacted ban, known as Proposition 8, with the expectation that public opinion has shifted in their favor since it passed with 52 percent of the vote in November 2008.

Prop. 8 amended the state constitution to limit marriage to a man and a woman. From justices’ questions Tuesday during arguments over its constitutionality, legal experts assume a majority will not strike down that measure along with similar amendments adopted in 29 other states.

Such a broad ruling was what lawyers who sued to overturn Prop. 8 want from the high court. Instead, the court appeared headed for resolutions that would bypass any discussion of civil rights and, by default, allow one or both of the lower court decisions that struck down the ban to take effect. Legal scholars and lawyers involved in the case disagree about what is likely to occur from there.

-Dismissing the case

Unless five justices conclude Prop. 8 is unconstitutional, the surest route to restoring gay marriage in California lies in an option raised by Justice Anthony Kennedy. Kennedy suggested that if there was not a majority willing to preserve or overturn the ban, the court could belatedly dismiss the case "as improvidently granted," meaning it should not have taken up the appeal in the first place.

In that instance, a narrow 9th U.S. Circuit Court of Appeals ruling that struck down Prop. 8 without affecting gay marriage bans in other western states would stand, putting California back among states where gays and lesbians can wed, said John Culhane, a professor at Widener University School of Law in Delaware.

"Talk about deflating a balloon," he said. "Hundreds of briefs, the countless thousands of dollars spent on the case ... but practically, the effect would be the same as a win on the merits."

-Prop. 8 backers lacked standing to defend

Many experts assume gay marriage would be re-established in California if the court finds the coalition of religious conservative groups that got Prop. 8 on the 2008 ballot lacked the right to defend the measure in court, since then-Gov. Arnold Schwarzenegger and Jerry Brown, in his previous role as attorney general, refused to do so.

Such a ruling would vacate the 9th Circuit’s decision, but leave in place the order former U.S. District Judge Vaughn Walker issued after he overturned the ban as a violation of the civil rights of gay Californians, said Theodore Boutrous Jr., an attorney for the two couples who sued in Walker’s court for the right to marry.

The order prohibited the governor, attorney general, everyone under their control or supervision, and clerks for two counties where the plaintiffs live from enforcing the ban.

"The way I look at it is, we have multiple paths to victory," he said. "There are many, many things that could happen, and for almost every single one, the answer is Prop. 8 is gone."

-Only two couples affected

The justices could just as easily issue a ruling that invalidates both lower courts or at least limits the scope of Walker’s decision, since Prop. 8’s backers were the only ones who actively defended the ban in either venue, said Vikram Amar, a professor at the University of California, Davis.

In that instance, the plaintiffs - a lesbian couple from Berkeley and a gay couple from Burbank - almost certainly would be able to get married right away, but it’s less clear what it would mean for everyone else, Amar said.

"It’s basically a government forfeit. They would get their marriages," Amar said. "Judge Walker’s order that confers rights on everybody in California is much more open to question."

The 9th Circuit panel that eventually determined California voters could not take away a right as fundamental as marriage once it had been granted expressed similar reservations when it heard the case in December 2010.

Arguing on behalf of the couples, attorney David Boies told the three judges that if a county clerk who opposes same-sex marriages refuses to abide by Walker’s ruling, the attorney general and governor could ask a California court to clarify that it applies statewide. But Boies said he did not think that was necessary.

-Future court fights

While an expansive high court decision appears unlikely, California remains a sought-after prize in the gay marriage debate. An estimated 18,000 same sex couples got married in the state during the brief window before Prop. 8 passed - and the state has more same-sex households than anywhere else in the nation.

Lawyers for the ban’s sponsors plan to fight any attempt to abolish the ban statewide if the Supreme Court decides they lacked standing to appeal.

"If the Supreme Court holds that the proponents of the marriage protection amendment lack standing, not only would the opinion of the 9th Circuit be vacated, the district court’s sweeping opinion and state-wide injunction should be vacated as well," Alliance Defending Freedom Senior Counsel Austin Nimocks said.

If they succeed in limiting the scope of the trial court’s order - and marriage remains out of reach for the vast majority of gay Californians- legal experts envision several possible responses from pro-gay marriage forces.

Other gay and lesbian couples who want to get married could file lawsuits of their own. Brown, who is now governor, and Attorney General Kamala Harris could order county clerks to issue marriage licenses to all same-sex couples seeking them. And a new round of litigation would fall to another California judge.

University of Southern California constitutional law professor David Cruz, who attended the arguments, says that even if the legal fight continues, a campaign asking voters to repeal Proposition 8 would probably cut it short.

"The more time that passes, presumably the greater support for equal rights becomes," he said.

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